Well, this is exciting! Starting in January and for the Spring 2022 Semester, I will be a Small Group Instructor for the Upper Division Advanced Trial Advocacy Course at the University of San Diego School of Law. In this course, upper-class law students will learn about and practice skills for all phases of a civil trial – voir dire, opening, direct exam, cross exam, objections, impeachment, closing, etc. I will instruct the practice component of the class through these trial phases to a small group of students over the course of the semester. This is a part-time gig and will not impact my litigation and trial practice. In fact, I have a number of significant matters set for trial early next year and we’re getting ready – perhaps some of my students will come watch a trial! I am pleased to assist my law school alma mater in this trial course and I’m excited about the opportunity to instruct law students and help shape the trial skills of my soon-to-be colleagues. This should be interesting and a lot of fun! Thank you to the USD School of Law, and to Professor Linda Lane, for this unique opportunity. I may provide insights from teaching this course once we get going, so stay tuned!
Trials, trials, trials! I suspect the late 2021-early 2022 calendars of most San Diego trial attorneys are filling back up with trials, trials, trials. Mine sure is! The 2020-2021 covid court restrictions and associated delayed trial dates and, now, the court’s reopening and full resumption of trials have, for me, sandwiched together a bunch of what were very nicely-spaced 2020-2021 trials into the 4th qtr 2021 and 1st qtr 2022. Six jury trials from mid-November to late-February, including 2 or 3 that will, if they go, last a week or two. And I am sure I am not alone amongst San Diego litigators in that regard. Surely, and like always, some will settle out, or get bumped further out, and we don’t really know how solid these civil trial dates are, given the current post-covid criminal trial backlog. They won’t all go, never do. But, we have to be ready to go for our clients, and most of the judicial comments I have heard at recent CMCs, status conferences and hearings are that things have changed, the courts are fully open for business, there are trial back logs to be addressed, and we must assume trial dates are real unless advised otherwise. So, who knows? We, San Diego judges and trial lawyers alike, will see how this all shakes out together. Regardless, its going to be a busy fall and winter for San Diego trial lawyers and for the courts. Not griping, not at all! Good for my patient clients to get their cases back moving towards resolution again, and I am happy to be at back at it for them. It’s good to be back in court, and it will be really good to put my hands on a counsel table, push myself up, stand, answer “Ready”, walk into the well, turn to a jury, and start an opening statement, in a trial, in a courtroom.
Pleased, actually very pleased, and honored to be named to the top 50 San Diego Super Lawyers list for 2021, a 2021 San Diego Super Lawyer for Business Litigation, and a 2021 San Diego Magazine Top Lawyer for Civil Litigation.
In the to and fro of modern litigation, at the speed at which we practice these days, I occasionally, not very often, but admittedly, occasionally, get myself stuck in that devolving rat hole of acerbic email exchanges with opposing counsel that start to drift from the professional to the personal. I get my hackles up and my competitive juices start to flow (but not in right direction), and I step into that rat hole with my opposing counsel, my colleague. We go at it, back and forth, emails flying, email-response-email-response, back and forth, we fall into presuming bad faith on each others part, questioning each others motives, and painting each other personally with our respective client’s litigation positions. We let our usually stellar professional demeanors and calm dispositions slip into “oh yeah, well, take that” mode. It becomes an unprofessional, unproductive, condescending, rat hole of battling egos.
And, frankly, most civil litigators are pretty good at it, they can do the back-and-forth all day – parsed words, pithy retorts, and ever-so-subtle comments implying bad faith and slyly underscoring the weak lawyering skills or lack of experience of your opponent. (And, guys, let’s be honest, the rat hole does trend male!) Litigators, trial lawyers, we’ve all been there, or been tempted to go there. I have. Been there, done that – not very often, but, I have stepped into that mess. And it’s not good. It’s a down-spiraling rat hole. And, in all instances, its dangerous, not good for your client or his/her pocketbook, not good for your practice or career, and not good for your health.
First, the rat hole rarely, if ever, moves your case forward in a productive substantive way, and you will most always create email exchanges that look awful, if not downright juvenile, when laid bare before the court in a subsequent motion. In the heat of rat hole battle, you could also put something in writing, without taking time to reflect on ramifications, that harms your client’s position or glues you to a position that you don’t want to be stuck to. You may also be ruining the professional relationship that you might unexpectedly need for an extension or some extra time two months later. The rat hole breeds grudges that demand retribution.
Second, the rat hole is just a terrible waste of your productive time, and money, either yours if you don’t bill for your rat hole time or your client’s, if you do.
Third, if you are a frequent, habitual rat holer, word will get out. It will hurt your practice and career. Your reputation will suffer. Your brand will tarnish. Your opponents will be wary of you, not because you’re a great lawyer, but because you cannot be trusted and because litigating in the rat hole with you is just awful. Colleagues will stop referring you clients because they don’t want to tarnish their reputations by exposing their clients and referrals to your rat hole-ness. Attorneys are terrible gossips. As a rat holer, you will surely become a frequent topic of such gossip. And that’s not good.
Fourth, unless you are by nature a bit perverted, the rat hole is just not good for your well-being and health. Its profoundly negative. You usually get attacked personally, your skills and experience get impliedly, if not expressly, questioned. That’s not fun. And it is wholly unproductive. That pithy well-constructed attack sentence may make you feel good when you click and send. But, it’s effects are ephemeral at best. There will be a response, and you will counter. Every one must have the last word in the rat hole.
The rat hole, it’s just not a good place.
So avoid it. Don’t step in the hole. Take a breath, take a walk, reflect a few extra more minutes before you send that nasty email or respond to the nasty one you just got. Is it necessary? Is it worth it? Does it further your client’s cause? The sharp, well-landed, punch or counter-punch may feel good at the moment, but,…. really? Keep on steady ground, fight hard, go at it, but don’t rat hole.
And, if you slip, step in, start to get sucked down into the rat hole. Stop. Just stop. Climb out. Pick up the phone. Email, text, whatever. Contact your opponent, your colleague. And simply, forthrightly, apologize for your tone and conduct, for your rat hole-ness, re-set your relationship as best you can, and go back to fighting for your client, hard, but on substance, on procedure, and on the law and the facts, on the steady ground of competence and professionalism. If an apology for your rat hole-ness is not in the cards, ok, just stop, move on, and work to rebuild your relationship with counsel with words and deeds going forward. But, either way, really, stop and climb out! It’s just that simple. And, I assure you, in most every instance, your opponent will want to climb out of that hole too. That has been my experience from my few trips to, and climbs back out of, the hole. Because, except for those habitual holers, and we all know who they are, nobody really likes the rat hole!
And if your opponent, no matter your professional overtures, words and deeds, wants to stay in the hole with the rats, let him. Just don’t jump back in yourself. Bottom line – avoid the rat hole! It’s not good for your client, or for you.
We have adjusted to our locked-down litigator lives. Zoom depositions. Video and court call appearances. Working from home. Video mediations. Empty offices. Causal attire. Masks. Distance. Worries about getting others sick, about parents/loved ones, about getting sick. Cases move forward, discovery proceeds, motions are heard, depositions are taken, trials are set, cases are settled, new cases are filed. And the months pass. It has all kinda’ worked. It’s ok.
But, you know, …
I really miss being in a courtroom. The whole thing. Walking into the courthouse. Riding the elevator up packed with lawyers. Seeing and chatting up friends in the halls. Sitting with colleagues waiting through a long calendar for my matter to be called. Hearing other lawyers argue their cases. Interesting motions, stupid motions. Good arguments, stupid arguments. The judge-lawyer banter. Happy judges, terse judges, hard-to-read judges. Hearing my matter called. Appearing. Arguing. CMCs. TRCs. In-limines. Standing up to give opening. Cross-examining witnesses. Closing. Waiting on a jury. Taking a verdict. Winning. Losing. Those nobody-wins results. Even just walking back to the office along a crowded downtown sidewalk. All of it.
I miss court.
Sometimes I think running your own practice is best described as, everyday, walking a line – the line between doing the work and getting the work. Spend too much time doing the work, you don’t have enough new work. Spend too much time getting the work, you struggle – working late or weekends – to do the work. The line, there to walk everyday. Some days I feel like a soldier, in shiny boots, rifle in hand, chin up, head erect, eyes forward, marching, in identically-calibrated steps, the line perfectly. Other days, I feel like a drunk, pulled over by a traffic cop, asked to walk the inebriation line, not even knowing where the line is. But, you plow ahead, everyday, you strive to do your best work every time, you get the work done and timely filed, you keep the clients happy, you hustle for new work, you pay the bills, you take some money home, you handle the ups and downs of private practice, you juggle work and home, and you move forward – everyday, happily walking the line, your line.
The Superior Court has fully closed now for all but emergency matters through April 3. All civil proceedings are continued and all court filings are suspended. For filing deadline purposes, all days during this suspension are considered holidays meaning, in effect, that all filing deadlines are continued for the duration of the court suspension and will reset where they were when the suspension is lifted. So, rights in ongoing cases will not be prejudiced by the court suspension.
The U.S. District Court in San Diego remains open but under very severe restrictions. All jury trials are continued to April 16 and no new trials are being set. Individual district judges retain discretion to hold hearings and conduct proceedings, by telephone or video conference where practicable, as necessary to preserve the rights of the parties. U.S. District Court electronic civil filings are still ongoing.
Accordingly, we will be making no new filings in Superior Court but will continue to meet all filing deadlines in all matters in U.S. District Court. Otherwise, cases and matters remain on file and active.
Regardless of these changes and any more to come, our practice is open and running, and will remain so in this unsettled time. Our opponents are surely working. So are we. We are here, we are available, we continue to fully represent our clients and protect their rights in all ongoing matters, and we are taking on new matters. If you have questions or concerns, don’t hesitate to call/email/text.
Be safe and stay healthy.